House Study Bill 149 



                                       HOUSE FILE       
                                       BY  (PROPOSED COMMITTEE ON LABOR
                                            BILL BY CHAIRPERSON OLSON)


    Passed House, Date               Passed Senate,  Date             
    Vote:  Ayes        Nays           Vote:  Ayes        Nays         
                 Approved                            

                                      A BILL FOR

  1 An Act requiring the payment of local prevailing wage rates to
  2    persons working on public improvements for public bodies, and
  3    providing penalties and effective and applicability dates.
  4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  5 TLSB 1573YC 83
  6 ak/nh/24

PAG LIN



  1  1    Section 1.  Section 84A.5, subsection 4, Code 2009, is
  1  2 amended to read as follows:
  1  3    4.  The division of labor services is responsible for the
  1  4 administration of the laws of this state under chapters 88,
  1  5 88A, 88B, 89, 89A, 89B, 90A, 91, 91A, 91C, 91D, 91E, 91F, 92,
  1  6 and 94A, and section 85.68.  The executive head of the
  1  7 division is the labor commissioner, appointed pursuant to
  1  8 section 91.2.
  1  9    Sec. 2.  NEW SECTION.  91F.1  SHORT TITLE.
  1 10    This chapter shall be known and may be cited as the "Public
  1 11 Improvement Quality Protection Act".
  1 12    Sec. 3.  NEW SECTION.  91F.2  PUBLIC POLICY.
  1 13    It is in the public interest that public improvements are
  1 14 completed by the best means and highest quality of labor
  1 15 reasonably available, and that workers working on public
  1 16 improvements be compensated according to the real value of the
  1 17 services they perform.  It is the policy of this state that
  1 18 the wages of workers working on public improvements should be
  1 19 at least equal to the prevailing wage rates paid for similar
  1 20 work by responsible contractors in the community as a whole in
  1 21 order to accomplish all of the following:
  1 22    1.  Protect workers and their contractors and
  1 23 subcontractors from the effects of serious and unfair
  1 24 competition resulting from wage levels detrimental to
  1 25 efficiency and well=being.
  1 26    2.  Ensure that contractors compete with one another on the
  1 27 basis of the ability to perform work competently and
  1 28 efficiently while maintaining community=established
  1 29 compensation standards.
  1 30    3.  Recognize that local participation in public
  1 31 improvements and family wage income and benefits are essential
  1 32 to the protection of community standards.
  1 33    4.  Encourage training and education of workers to industry
  1 34 skills standards.
  1 35    5.  Encourage contractors and subcontractors to use funds
  2  1 allocated for employee fringe benefits for the actual purchase
  2  2 of those benefits.
  2  3    Sec. 4.  NEW SECTION.  91F.3  DEFINITIONS.
  2  4    As used in this chapter, unless the context otherwise
  2  5 requires:
  2  6    1.  "Commissioner" means the labor commissioner appointed
  2  7 pursuant to section 91.2 or the labor commissioner's designee.
  2  8    2.  "Contractor" or "subcontractor" means a person who
  2  9 undertakes, offers to undertake, purports to have the capacity
  2 10 to undertake, or submits a bid, individually or through
  2 11 others, to engage in a public improvement.
  2 12    3.  "Custom fabrication" means the fabrication of plumbing,
  2 13 heating, cooling, ventilation, architectural systems,
  2 14 structural systems, exhaust duct systems, or mechanical
  2 15 insulation.
  2 16    4.  "Division" means the division of labor of the
  2 17 department of workforce development.
  2 18    5.  a.  "Fringe benefits" means the following for the
  2 19 provision or purchase of any of the benefits enumerated in
  2 20 paragraph "b":
  2 21    (1)  The contribution irrevocably made by a contractor or
  2 22 subcontractor to a trustee or to a third person pursuant to a
  2 23 plan, fund, or program.
  2 24    (2)  The costs to the contractor or subcontractor which may
  2 25 be reasonably anticipated in providing benefits to workers
  2 26 pursuant to an enforceable commitment to carry out a
  2 27 financially responsible plan or program, given in writing to
  2 28 the workers affected.
  2 29    b.  (1)  Medical or hospital care.
  2 30    (2)  Pensions or annuities on retirement or death.
  2 31    (3)  Supplemental unemployment benefits.
  2 32    (4)  Life insurance.
  2 33    (5)  Disability and sickness insurance.
  2 34    (6)  Accident insurance for nonwork=related accidents.
  2 35    (7)  Vacation or holiday pay.
  3  1    (8)  Defraying costs of apprenticeship programs approved by
  3  2 and registered with the United States department of labor's
  3  3 bureau of apprenticeship and training.
  3  4    6.  "Interested party" means any of the following:
  3  5    a.  A contractor who submits a bid for the purpose of
  3  6 securing the award of a contract for a public improvement.
  3  7    b.  A subcontractor of a contractor mentioned in a bid
  3  8 referred to in paragraph "a".
  3  9    c.  A worker employed by a contractor or subcontractor
  3 10 described in either paragraph "a" or "b".
  3 11    d.  A labor organization that represents workers engaged in
  3 12 the same craft or classification as workers employed by a
  3 13 contractor or subcontractor described in either paragraph "a"
  3 14 or "b" and that exists, in whole or in part, for the purpose
  3 15 of negotiating with employers concerning the wages, hours, or
  3 16 terms and conditions of employment of employees.
  3 17    e.  A joint labor=management committee established pursuant
  3 18 to the federal Labor Management Cooperation Act of 1978, 29
  3 19 U.S.C. } 175a.
  3 20    7.  "Locality" means a county of this state.
  3 21    8.  "Maintenance work" means the repair of existing public
  3 22 improvements when the size, type, or extent of the public
  3 23 improvement is not changed or increased.
  3 24    9.  "Prevailing wage rate" means the hourly wage plus
  3 25 fringe benefits, which the commissioner determines prevails in
  3 26 accordance with this chapter, including all of the following:
  3 27    a.  Apprentice ratios and the prevailing apprentice pay
  3 28 levels for each craft, classification, or type of worker which
  3 29 the commissioner determines prevails in accordance with
  3 30 section 91F.5.
  3 31    b.  A prevailing rate for overtime pay for work in excess
  3 32 of the normal prevailing workday and for weekend overtime pay
  3 33 for each craft, classification, or type of worker, including
  3 34 apprentices.
  3 35    c.  Holiday pay for holidays that prevail in the locality
  4  1 in which the work is being performed.
  4  2    10.  "Public body" means the state and any of its political
  4  3 subdivisions, including but not limited to a county, city,
  4  4 township, school district, state board of regents, and public
  4  5 utility.  For the purposes of this chapter, "public utility"
  4  6 includes municipally owned utilities and municipally owned
  4  7 waterworks.
  4  8    11.  a.  "Public improvement" means any of but not limited
  4  9 to the following that meets the criteria set out in paragraphs
  4 10 "b" and "c":
  4 11    (1)  Construction, alteration, reconstruction, repair,
  4 12 rehabilitation, refinishing, refurbishing, remodeling,
  4 13 renovation, custom fabricating, maintenance, landscaping,
  4 14 improving, moving, wrecking, painting, decorating, or
  4 15 demolishing of, or adding to or subtracting from any building,
  4 16 structure, sewer, ditch, sewage disposal plant, waterworks,
  4 17 parking facility, excavation or other structure, project,
  4 18 development, or improvement, or any part thereof undertaken by
  4 19 a public body, including any of but not limited to the
  4 20 following related activities:
  4 21    (a)  The erection of scaffolding or other structures or
  4 22 works.
  4 23    (b)  The maintenance, repair, assembly, or disassembly of
  4 24 equipment.
  4 25    (c)  The testing of materials.
  4 26    (d)  The hauling of refuse from a site to an outside
  4 27 disposal location.
  4 28    (e)  The cleaning of grounds or structures.
  4 29    (f)  The addition to or fabrication into any structure,
  4 30 project, development, or improvement of any material or
  4 31 article of merchandise undertaken by a public body.
  4 32    (2)  The preparation and removal of roadway construction
  4 33 zones, lane closures, flagging, or traffic diversions
  4 34 undertaken by a public body.
  4 35    (3)  The installation, repair, maintenance, or calibration
  5  1 of monitoring equipment for underground storage tanks
  5  2 undertaken by a public body.
  5  3    (4)  Work that is performed on any property or premises
  5  4 dedicated exclusively or nearly so to the completion of a
  5  5 public improvement, and transportation of supplies, material,
  5  6 and equipment to or from the property or premises undertaken
  5  7 by a public body.
  5  8    b.  Work on the public improvement is performed under
  5  9 public supervision or direction, and the work is financed
  5 10 wholly or in part from public funds, or if at the time of
  5 11 commencement of the public improvement all of the following
  5 12 conditions with respect to the public improvement are met:
  5 13    (1)  Not less than fifty=five percent of the structure is
  5 14 leased by a public body, or is subject to an agreement to be
  5 15 subsequently leased by a public body.
  5 16    (2)  The portion of the structure that is leased or subject
  5 17 to an agreement to be subsequently leased by a public body
  5 18 measures more than twenty thousand square feet.
  5 19    c.  The public improvement meets one of the following
  5 20 descriptions:
  5 21    (1)  The project is funded by the state or the state board
  5 22 of regents and the estimated total cost is one hundred
  5 23 thousand dollars or more.
  5 24    (2)  The project is funded by a school district and the
  5 25 estimated total cost is three hundred thousand dollars or
  5 26 more.
  5 27    (3)  The project is funded by a county with a population of
  5 28 forty thousand or more and the estimated total cost is one
  5 29 hundred thousand dollars or more.  Population, for the
  5 30 purposes of this subparagraph, shall be based on the most
  5 31 recent United States census bureau decennial census figures.
  5 32    (4)  The project is funded by a city with a population of
  5 33 twenty thousand or more and the estimated total cost is one
  5 34 hundred thousand dollars or more.  Population, for the
  5 35 purposes of this subparagraph, shall be based on the most
  6  1 recent United States census bureau decennial census figures.
  6  2    (5)  The total estimated cost of the project is one million
  6  3 dollars or more, regardless of the public body's population.
  6  4    12.  "Worker" means an individual who performs any labor or
  6  5 service for a contractor or subcontractor on a public
  6  6 improvement but does not include an individual when
  6  7 transporting supplies, materials, or equipment for a seller,
  6  8 supplier, manufacturer, or processor of materials or
  6  9 equipment.  The individual is deemed an employee of a
  6 10 contractor or subcontractor unless all of the following apply:
  6 11    a.  The individual provides labor or services free from the
  6 12 direction or control over the means and manner of providing
  6 13 the labor or services, subject only to the right of the person
  6 14 for whom the labor or services are provided to specify the
  6 15 desired results.
  6 16    b.  The individual providing the labor or services is
  6 17 responsible for obtaining business registrations or licenses
  6 18 required by state law or local ordinance to provide the labor
  6 19 or services.
  6 20    c.  The individual providing the labor or services
  6 21 furnishes the tools and equipment necessary to provide the
  6 22 labor or services.
  6 23    d.  The individual providing the labor or services has the
  6 24 authority to hire and fire employees to perform the labor or
  6 25 services.
  6 26    e.  Payment for the labor or services is made upon
  6 27 completion of the performance of specific portions of a public
  6 28 improvement, or is made on the basis of a periodic retainer.
  6 29    f.  The individual providing the labor or services
  6 30 represents to the public that the labor or services are to be
  6 31 provided by an independently established business.  An
  6 32 individual is engaged in an independently established business
  6 33 when four or more of the following circumstances exist:
  6 34    (1)  Labor or services are primarily performed at a
  6 35 location separate from the individual's residence or in a
  7  1 specified portion of the residence that is set aside for
  7  2 performing labor or services.
  7  3    (2)  Commercial advertising or business cards are purchased
  7  4 by the individual, or the individual is a member of a trade or
  7  5 professional association.
  7  6    (3)  Telephone or electronic mail listings used by the
  7  7 individual for the labor or services are different from the
  7  8 individual's personal listings.
  7  9    (4)  Labor or services are performed only pursuant to a
  7 10 written contract.
  7 11    (5)  Labor or services are performed for two or more
  7 12 persons or entities within a period of one year.
  7 13    (6)  The individual assumes financial responsibility for
  7 14 errors and omissions in the performance of the labor or
  7 15 services as evidenced by insurance, performance bonds, and
  7 16 warranties relating to the labor or services provided.
  7 17    Sec. 5.  NEW SECTION.  91F.4  ADMINISTRATION.
  7 18    The commissioner and the division shall administer this
  7 19 chapter and the commissioner shall adopt rules for the
  7 20 administration and enforcement of this chapter as provided in
  7 21 section 91.6.
  7 22    Sec. 6.  NEW SECTION.  91F.5  DETERMINATION OF PREVAILING
  7 23 WAGES.
  7 24    1.  The commissioner shall determine annually and publish,
  7 25 on the first business day of July, the prevailing wage rates
  7 26 by locality for each craft, classification, or type of worker
  7 27 needed to perform work on public improvements.  The rates
  7 28 shall be conclusive for one year from the date of publication
  7 29 unless superseded within the one year by a later publication
  7 30 of the commissioner, or for a longer period as provided in
  7 31 subsection 5.
  7 32    2.  The commissioner shall announce all prevailing wage
  7 33 rate determinations by locality and give notice by posting
  7 34 them on the portion of the department of workforce
  7 35 development's internet website related to the division.  A
  8  1 printed version of the prevailing wage rates for the state
  8  2 shall be available to the public upon request to the division.
  8  3    3.  The public body awarding any contract for a public
  8  4 improvement, or otherwise undertaking any public improvement,
  8  5 shall obtain from the internet website the prevailing wage
  8  6 rate in the locality in which the public improvement is to be
  8  7 performed for each craft, classification, or type of worker
  8  8 needed to perform work on the public improvement.  After a
  8  9 public improvement contract is awarded, or a public
  8 10 improvement is otherwise undertaken, the prevailing wage rate
  8 11 published by the commissioner and stated in the public body's
  8 12 public improvement procurement documents shall remain in
  8 13 effect throughout the duration of the public improvement
  8 14 unless superseded by a later determination and publication by
  8 15 the commissioner, or unless multiyear prevailing wage rates
  8 16 have been published by the commissioner at the time the public
  8 17 improvement procurement documents were released.
  8 18    4.  a.  In determining the annual prevailing wage rate for
  8 19 any craft, classification, or type of worker, the commissioner
  8 20 shall ascertain and consider the applicable wage rates and
  8 21 fringe benefits established by collective bargaining
  8 22 agreements, the prevailing wage rate determinations that may
  8 23 exist for federal public improvements within the locality and
  8 24 other data obtained by the division during any prevailing wage
  8 25 rate survey of contractors who participate in an
  8 26 apprenticeship program approved by and registered with the
  8 27 United States department of labor's bureau of apprenticeship
  8 28 and training, who provide health insurance and retirement
  8 29 benefits for their workers, and who are registered with the
  8 30 division.  Based upon these considerations, the commissioner
  8 31 shall calculate the prevailing wage rates based on the wage
  8 32 rate plus fringe benefits most often occurring for each craft,
  8 33 classification, or other type of worker within each locality.
  8 34    b.  The minimum annual prevailing wage rate determination
  8 35 established by the division shall not be lower than the
  9  1 prevailing wage rate determination that may exist for federal
  9  2 public improvements within the locality.
  9  3    c.  None of the benefits enumerated in this chapter may be
  9  4 considered in the determination of prevailing wage rates if
  9  5 the contractor or subcontractor is required by other federal,
  9  6 state, or local law to provide such benefits.
  9  7    5.  If the commissioner determines that the prevailing wage
  9  8 rate for any craft, classification, or type of worker is the
  9  9 rate established by a collective bargaining agreement
  9 10 applicable in the locality, the commissioner may adopt that
  9 11 rate by reference and that determination shall be effective
  9 12 for the life of the agreement or until the commissioner adopts
  9 13 another rate.
  9 14    6.  a.  At any time within fifteen days after the division
  9 15 has published on the department of workforce development's
  9 16 internet website the annual prevailing wage rates for each
  9 17 classification, craft, or other type of worker in the
  9 18 locality, any interested person affected may object to the
  9 19 determination or the part of the determination as the
  9 20 interested person may deem objectionable by filing a written
  9 21 notice with the commissioner by restricted certified mail as
  9 22 defined in section 618.15.  When objecting to a prevailing
  9 23 wage rate determination, the interested person shall submit,
  9 24 as a part of the written notice, the prevailing wage rate the
  9 25 interested person believes to be the correct prevailing wage
  9 26 rate determination, stating the specific grounds to support
  9 27 that position.  Upon receipt of the notice of objection, the
  9 28 commissioner shall reconsider the determination and shall
  9 29 affirm or modify the determination and reply in writing by
  9 30 restricted certified mail to the interested person within
  9 31 fifteen days from the date of the receipt of the notice of
  9 32 objection.  Any modification to the prevailing wage rate
  9 33 determination shall be effective on the date the modification
  9 34 is published by the commissioner.
  9 35    b.  If the commissioner declines to modify the
 10  1 determination, within ten days upon receiving receipt of the
 10  2 commissioner's decision, the interested person affected may
 10  3 submit in writing the objection to the division by restricted
 10  4 certified mail, stating the specified grounds of the
 10  5 objection.  The department of inspections and appeals shall be
 10  6 notified of the objection and set a date for a hearing before
 10  7 an administrative law judge on the objection, after giving
 10  8 notice by restricted certified mail to the interested person
 10  9 and the division at least ten days before the date of the
 10 10 hearing of the time and place of the hearing.  The hearing
 10 11 shall be held within forty=five days after the objection is
 10 12 filed, and shall not be postponed or reset for a later date
 10 13 except upon the consent, in writing, of the interested person
 10 14 and the division.
 10 15    7.  The party requesting a hearing shall have the burden of
 10 16 establishing that the annual prevailing wage rate
 10 17 determination for that locality was not determined in
 10 18 accordance with this chapter.  If the party requesting a
 10 19 hearing under this section objects to the commissioner's
 10 20 failure to include a craft, classification, or type of worker
 10 21 within the annual prevailing wage rate determination in the
 10 22 locality, the objector shall have the burden of establishing
 10 23 that there is no existing prevailing wage rate classification
 10 24 for the particular craft, classification, or type of worker in
 10 25 any of the localities under consideration.
 10 26    8.  The administrative law judge may in the administrative
 10 27 law judge's discretion hear each written objection filed
 10 28 separately or consolidate for hearing any one or more written
 10 29 objections filed with the division.  At the hearing, the
 10 30 division shall introduce into evidence the investigation it
 10 31 instituted which formed the basis of its determination, and
 10 32 the division or any interested objectors may introduce
 10 33 evidence that is material to the determination.  The
 10 34 administrative law judge shall rule upon each written
 10 35 objection and make a final determination, as the
 11  1 administrative law judge believes the evidence warrants, and
 11  2 promptly serve a copy of the final determination by personal
 11  3 service or restricted certified mail on all parties to the
 11  4 proceedings.  The administrative law judge shall render a
 11  5 final determination within thirty days after the conclusion of
 11  6 the hearing.
 11  7    9.  If proceedings to review judicially the final
 11  8 determination of the administrative law judge are not
 11  9 instituted as provided in this section, the determination
 11 10 shall be final and binding.  The provisions of section 17A.19
 11 11 shall apply to and govern all proceedings.  Appeals from all
 11 12 final orders and judgments entered by the court in review of
 11 13 the final determination of the administrative law judge may be
 11 14 taken by any party to the action.  In all reviews or appeals
 11 15 under this chapter, the attorney general shall represent the
 11 16 division and defend its determination.
 11 17    10.  This section does not give reason or provide cause for
 11 18 an injunction to halt or delay any public improvement.
 11 19    Sec. 7.  NEW SECTION.  91F.6  PAYMENT OF PREVAILING WAGES
 11 20 REQUIRED.
 11 21    1.  Contractors and subcontractors engaged in a public
 11 22 improvement shall not pay less than the current specified
 11 23 prevailing wage rates to all of their workers engaged in the
 11 24 public improvement.  However, this chapter does not prohibit
 11 25 the payment of more than the prevailing wage rate to any
 11 26 workers engaged in a public improvement.
 11 27    2.  All contractors and subcontractors required to pay the
 11 28 prevailing wage rate under this chapter shall pay the wages in
 11 29 legal tender, without any deduction for food, sleeping
 11 30 accommodations, transportation, use of tools or safety
 11 31 equipment, vehicle or equipment rental, or any other thing of
 11 32 any kind or description.
 11 33    Sec. 8.  NEW SECTION.  91F.7  REQUIREMENTS FOR PUBLIC
 11 34 IMPROVEMENTS.
 11 35    1.  The public body awarding a contract for a public
 12  1 improvement or otherwise undertaking a public improvement
 12  2 shall specify in the call for bids for the contract that this
 12  3 chapter applies to the public improvement.
 12  4    2.  If a public improvement requires the payment of
 12  5 prevailing wage rates, the public body shall require the
 12  6 contractor to execute a written instrument that not less than
 12  7 the prevailing wage rate shall be paid to all workers
 12  8 performing work on the public improvement.  The written
 12  9 instrument shall also contain a provision that if it is found
 12 10 that any of the contractor's workers engaged in the public
 12 11 improvement has been paid at a wage rate less than the
 12 12 prevailing wage rate required by this chapter, the public body
 12 13 may terminate the contractor's right to proceed with the work
 12 14 and the contractor and its sureties shall be liable to the
 12 15 public body for any excess costs occasioned by the failure to
 12 16 pay the prevailing wage rate.  The written instrument shall
 12 17 have attached a list of the specified prevailing wage rates
 12 18 for all crafts, classifications, or types of workers in the
 12 19 locality for each worker needed to be included in the contract
 12 20 for the public improvement.
 12 21    3.  If a contract is let for a public improvement requiring
 12 22 the payment of prevailing wage rates, the public body awarding
 12 23 the contract shall cause to be inserted in the public
 12 24 improvement specifications and contract a stipulation that not
 12 25 less than the prevailing wage rate shall be paid to all
 12 26 workers performing work under the contract.  The contract
 12 27 shall also contain a provision to the effect that if it is
 12 28 found that any of the contractor's workers engaged in the
 12 29 public improvement has been paid at a wage rate less than the
 12 30 prevailing wage rate required by this chapter, the public body
 12 31 may terminate the contractor's right to proceed with the work
 12 32 and the contractor and its sureties shall be liable to the
 12 33 public body for any excess costs occasioned by the failure to
 12 34 pay the prevailing wage rate.  All bid specifications shall
 12 35 list the specified prevailing wage rates for all crafts,
 13  1 classifications, or types of workers in the locality for each
 13  2 worker needed to be included in the contract.
 13  3    4.  If a public improvement requires the payment of
 13  4 prevailing wage rates, the contractor shall require any
 13  5 subcontractors engaged by the contractor on the public
 13  6 improvement to execute a written instrument that not less than
 13  7 the prevailing wage rates shall be paid to all workers
 13  8 performing work on the public improvement.  The written
 13  9 instrument shall also contain a provision that if it is found
 13 10 that any of the subcontractor's workers engaged in the public
 13 11 improvement has been paid at a wage rate less than the
 13 12 prevailing wage rate required by this chapter, the public body
 13 13 may terminate the subcontractor's right to proceed with the
 13 14 work and the subcontractor and its sureties shall be liable to
 13 15 the public body for any excess costs occasioned by the failure
 13 16 to pay the prevailing wage rate.  The written instrument shall
 13 17 have attached a list of the specified prevailing wage rates
 13 18 for all crafts, classifications, or types of workers in the
 13 19 locality for each worker needed to be included in the
 13 20 contract.
 13 21    5.  If a subcontract is let for a public improvement
 13 22 requiring the payment of the prevailing wage rate, the
 13 23 contractor to whom the contract is awarded shall insert into
 13 24 the subcontract and into the public improvement project
 13 25 specifications for each subcontract a written stipulation that
 13 26 not less than the prevailing wage rate shall be paid to all
 13 27 workers performing work under the subcontract.  A
 13 28 subcontractor shall insert into each lower=tiered subcontract
 13 29 a stipulation that not less than the prevailing wage rate
 13 30 shall be paid to all workers performing work under the
 13 31 subcontract.  The subcontract shall also contain a provision
 13 32 that if it is found that any subcontractor's workers engaged
 13 33 in the public improvement have been paid at a wage rate less
 13 34 than the prevailing wage rate required by this chapter, the
 13 35 public body may terminate the subcontractor's right to proceed
 14  1 with the work and the subcontractor and its sureties shall be
 14  2 liable to the public body for any excess costs occasioned by
 14  3 the failure to pay the prevailing wage rate.  All bid
 14  4 specifications shall list the specified prevailing wage rates
 14  5 for all crafts, classifications, or types of workers in the
 14  6 locality for each worker needed to be included in the
 14  7 subcontract.
 14  8    6.  A contractor or subcontractor engaging in a public
 14  9 improvement shall submit a performance bond in an amount
 14 10 determined by the public body which bond shall include a
 14 11 provision that will guarantee the payment of the prevailing
 14 12 wage rates as required by the contract.
 14 13    7.  Before final payment is made by or on behalf of a
 14 14 public body of any sum or sums due on a public improvement,
 14 15 the treasurer of the public body or other officer or person
 14 16 charged with the custody and disbursement of the funds of the
 14 17 public body shall require the contractor and subcontractor to
 14 18 file a written statement with the public body, in a form
 14 19 satisfactory to the division, certifying to the amounts then
 14 20 due and owing from the contractor and subcontractor to any and
 14 21 all workers for wages due on account of the public
 14 22 improvement, setting forth the names of the persons whose
 14 23 wages are unpaid and the amount due to each respectively.  The
 14 24 statement shall be verified by the oath of the contractor or
 14 25 subcontractor, as the case may be, that the contractor or
 14 26 subcontractor has read the statement certified by the
 14 27 contractor or subcontractor, knows the contents, and that the
 14 28 statement is true in accordance with the contractor's or
 14 29 subcontractor's own knowledge.  However, this chapter shall
 14 30 not impair the right of a contractor to receive final payment
 14 31 from a public body because of the failure of a subcontractor
 14 32 to comply with provisions of this chapter.  The treasurer of
 14 33 the public body or other officer or person charged with the
 14 34 custody and disbursement of the funds of the public body shall
 14 35 withhold the amount, if any, listed on the verified statement
 15  1 filed pursuant to this section for the benefit of the worker
 15  2 whose wages are unpaid as shown by the verified statement
 15  3 filed by the contractor or subcontractor, and the public body
 15  4 shall pay directly to any worker the amount shown by the
 15  5 statement to be due to the worker for the wages.  Payment
 15  6 shall discharge the obligation of the contractor or
 15  7 subcontractor to the person receiving the payment to the
 15  8 extent of the amount of the payment.
 15  9    8.  The public body awarding a contract for a public
 15 10 improvement or otherwise undertaking a public improvement
 15 11 shall notify the commissioner in writing, on a form prescribed
 15 12 by the commissioner, if a contract subject to the provisions
 15 13 of this chapter has been awarded.  The public body shall file
 15 14 the notification with the commissioner within thirty days
 15 15 after the contract is awarded or before commencement of the
 15 16 public improvement, and shall include a list of all first=tier
 15 17 subcontractors.
 15 18    Sec. 9.  NEW SECTION.  91F.8  FEDERAL PUBLIC IMPROVEMENTS
 15 19 == NOT APPLICABLE.
 15 20    The provisions of this chapter shall not be applicable to
 15 21 public improvements financed entirely by federal funds which
 15 22 require a prevailing wage rate determination by the United
 15 23 States department of labor.  However, unless a federal
 15 24 provision applies, if a public improvement is financed in part
 15 25 by a public body and in part by federal funds, the higher of
 15 26 the prevailing wage rates shall prevail for the public
 15 27 improvement.
 15 28    Sec. 10.  NEW SECTION.  91F.9  RECORDS REQUIRED.
 15 29    1.  While participating in a public improvement, the
 15 30 contractor and each subcontractor shall do all of the
 15 31 following:
 15 32    a.  Make and keep, for a period of not less than three
 15 33 years, accurate records of all workers employed by the
 15 34 contractor or subcontractor on the public improvement.  The
 15 35 records shall include each worker's name, address, telephone
 16  1 number when available, social security number, trade
 16  2 classification, the hourly wages paid in each pay period, the
 16  3 number of hours worked each day, and the starting and ending
 16  4 times of work each day.
 16  5    b.  Submit weekly a certified payroll to the public body in
 16  6 charge of the public improvement.  The certified payroll shall
 16  7 consist of a complete copy of the records identified in
 16  8 paragraph "a".  The certified payroll shall be accompanied by
 16  9 a statement signed by the contractor or subcontractor which
 16 10 avers that the records are true and accurate and the hourly
 16 11 wages paid to each worker are not less than the prevailing
 16 12 wage rate required by this chapter.
 16 13    2.  The public body in charge of the public improvement
 16 14 shall keep the records submitted in accordance with subsection
 16 15 1, paragraph "b", for a period of not less than three years.
 16 16 The records shall be considered public records and be made
 16 17 available in accordance with chapter 22.  Personal information
 16 18 submitted in accordance with subsection 1, paragraph "a",
 16 19 including names, addresses, social security numbers, telephone
 16 20 numbers, and other identifying information shall remain
 16 21 confidential and shall not be made public.
 16 22    3.  The contractor and each subcontractor shall make
 16 23 available for inspection the records identified in subsection
 16 24 1, paragraph "a", to the public body in charge of the public
 16 25 improvement, its officers and agents, and to the division.
 16 26    4.  For the purpose of verifying the accuracy of the
 16 27 records submitted pursuant to this section, the contractor and
 16 28 each subcontractor shall make its workers available at the
 16 29 site of the public improvement for interview by the public
 16 30 body in charge of the public improvement, its officers and
 16 31 agents, and the division.
 16 32    5.  Contractors and subcontractors performing work on
 16 33 public improvements subject to this chapter shall post the
 16 34 prevailing wage rates for each craft, classification, or type
 16 35 of workers involved in the public improvement in a prominent
 17  1 and easily accessible place at the site of the public
 17  2 improvement or at the place or places used by the contractor
 17  3 or subcontractor to pay workers their wages.
 17  4    Sec. 11.  NEW SECTION.  91F.10  POWERS OF COMMISSIONER.
 17  5    The commissioner or the commissioner's designee shall do
 17  6 all of the following:
 17  7    1.  Inquire diligently about any complaint of a violation
 17  8 of this chapter, institute actions for penalties prescribed,
 17  9 and enforce generally the provisions of this chapter.
 17 10    2.  Sue for injunctive relief against the awarding of a
 17 11 contract, the undertaking of a public improvement, or the
 17 12 continuation of a public improvement when the prevailing wage
 17 13 rate requirements of this chapter have not been met.
 17 14    3.  Investigate and ascertain the wages of workers engaged
 17 15 in any public improvement in this state.
 17 16    4.  a.  Enter and inspect the place of business or
 17 17 employment of a contractor, subcontractor, or workers employed
 17 18 on a public improvement in this state, for the purpose of
 17 19 examining and inspecting books, registers, payrolls, and other
 17 20 records of a contractor or subcontractor that in any way
 17 21 relate to or have a bearing upon the question of wages, hours,
 17 22 and other conditions of employment of workers covered under
 17 23 this chapter.
 17 24    b.  Copy the books, registers, payrolls, and other records
 17 25 as the commissioner or the commissioner's designee deems
 17 26 necessary or appropriate.
 17 27    c.  Question the workers for the purpose of ascertaining
 17 28 whether the provisions of this chapter have been and are being
 17 29 complied with.
 17 30    d.  Administer oaths, take or cause to be taken depositions
 17 31 of witnesses, and require by subpoena the attendance and
 17 32 testimony of witnesses and the production of all books,
 17 33 registers, payrolls, and other evidence relative to the matter
 17 34 under investigation or hearing.
 17 35    5.  Require from a contractor or subcontractor full and
 18  1 correct statements in writing, including sworn statements,
 18  2 with respect to wages, hours, names, addresses, and other
 18  3 information pertaining to its workers and their employment, as
 18  4 the commissioner or the commissioner's designee may deem
 18  5 necessary or appropriate.
 18  6    6.  Require a contractor or subcontractor to file, within
 18  7 ten days of receipt of a request, any records enumerated in
 18  8 subsections 3 and 4, sworn as to their validity and accuracy
 18  9 as required by subsection 5.  If the contractor or
 18 10 subcontractor fails to provide the requested records within
 18 11 ten days, the commissioner may direct, within fifteen days
 18 12 after the end of the ten=day period, that the fiscal or
 18 13 financial officer charged with the custody and disbursements
 18 14 of the funds of the public body, which contracted for
 18 15 construction of the public improvement or undertook the public
 18 16 improvement, to immediately withhold from payment to the
 18 17 contractor or subcontractor up to twenty=five percent of the
 18 18 amount to be paid to the contractor or subcontractor under the
 18 19 terms of the contract or written instrument under which the
 18 20 public improvement is being performed.  The amount withheld
 18 21 shall be immediately released upon receipt by the public body
 18 22 of a notice from the commissioner indicating that the request
 18 23 for records as required by this section has been satisfied.
 18 24    7.  If a contractor or subcontractor fails to provide
 18 25 requested records in accordance with subsection 6 within ten
 18 26 days, direct, within fifteen days after the end of the ten=day
 18 27 period, the fiscal or financial officer charged with the
 18 28 custody and disbursements of the funds of the public body,
 18 29 which contracted for construction of the public improvement or
 18 30 undertook the public improvement, to pay directly to workers
 18 31 employed by the contractor or subcontractor from the amount
 18 32 withheld from the contractor or subcontractor pursuant to
 18 33 subsection 6 any prevailing wage rates found to be due and
 18 34 payable to the workers.
 18 35    8.  Contract with a person registered as a public
 19  1 accountant under chapter 542 to conduct an audit of a
 19  2 contractor, subcontractor, or public body.
 19  3    Sec. 12.  NEW SECTION.  91F.11  NOTICE OF VIOLATIONS.
 19  4    1.   For purposes of this section:
 19  5    a.  "Accurate records" means the payroll records required
 19  6 to be filed with the public body in charge of the public
 19  7 improvement as required by section 91F.9.  "Accurate records"
 19  8 also means the hourly rate of contribution and costs paid for
 19  9 fringe benefits and whether the contributions and costs of the
 19 10 fringe benefits were paid into a fund or paid directly to the
 19 11 worker.
 19 12    b.  "Decision" means a determination by the division that a
 19 13 single violation of this chapter has occurred, warranting the
 19 14 commissioner to issue a notice of violation to a contractor or
 19 15 subcontractor.
 19 16    c.  "Notice of second violation" is a formal written notice
 19 17 issued by the division advising a contractor or subcontractor
 19 18 that a second or subsequent violation has occurred within
 19 19 three years from the date of the notice of a first violation.
 19 20    d.  "Notice of violation" means a formal written notice
 19 21 issued by the division to a contractor or subcontractor that
 19 22 the division has made a decision that the contractor or
 19 23 subcontractor has violated this chapter.
 19 24    e.  "Violation" means a written decision by the division
 19 25 that a contractor or subcontractor has done one of the
 19 26 following:
 19 27    (1)  Failed or refused to pay the prevailing wage rate to
 19 28 one or more workers as required by this chapter.
 19 29    (2)  Failed to keep accurate records as required by this
 19 30 chapter.
 19 31    (3)  Failed to produce for the division accurate records or
 19 32 produced records not in compliance with this chapter.
 19 33    (4)  Refused to submit records or testimony to the division
 19 34 in response to a subpoena issued in accordance with this
 19 35 chapter.
 20  1    (5)  Refused to comply with the certified payroll provision
 20  2 of section 91F.9.
 20  3    (6)  Refused the division access, at any reasonable hour at
 20  4 a location within the state, to inspect the contractor's or
 20  5 subcontractor's records as required by this chapter.
 20  6    (7)  Failed to insert into each subcontract or lower=tiered
 20  7 subcontract and into the public improvement specifications for
 20  8 each subcontract or lower=tiered subcontract or provide a
 20  9 written instrument if no contract exists, a written
 20 10 stipulation that not less than the prevailing wage rate be
 20 11 paid as required by this chapter, and a statement that if it
 20 12 is found that a subcontractor's workers engaged in the public
 20 13 improvement have been paid at a rate of wages less than the
 20 14 prevailing wage rate required to be paid by the contract, the
 20 15 public body shall terminate the subcontractor's right to
 20 16 proceed with the work.
 20 17    (8)  Failed to obtain a bond in the proper amount that
 20 18 guarantees the payment of the prevailing wage rates required
 20 19 in the contract.
 20 20    (9)  Failed to post the prevailing wage rates as required
 20 21 by this chapter.
 20 22    2.  After receipt of a complaint or on the division's
 20 23 initiative, the commissioner shall review the investigative
 20 24 file to determine whether a violation has occurred for which
 20 25 the contractor or subcontractor must be given notice.  All
 20 26 information and observations made during an audit or
 20 27 investigation shall be considered and shall constitute the
 20 28 basis for the division's decision that this chapter has been
 20 29 violated and that a notice of violation is required to be
 20 30 issued.  The notice of violation shall identify the specific
 20 31 violation and the amount of moneys estimated due the division
 20 32 and in controversy based on reasons contained in the
 20 33 investigative file.
 20 34    3.  In making a decision that a contractor or subcontractor
 20 35 has failed to allow the commissioner access to accurate
 21  1 records, the commissioner shall rely on the information
 21  2 contained in the investigative file, the certified payroll
 21  3 records filed with the public body in charge of the public
 21  4 improvement or any other information, and shall assess a
 21  5 separate violation for each day worked by each worker on the
 21  6 public improvement.  Each decision of a separate violation
 21  7 shall be listed in the notice of violation.
 21  8    4.  In determining that this chapter has been violated and
 21  9 that the issuance of a notice of violation is required, the
 21 10 commissioner shall base the decision on one or any combination
 21 11 of the following reasons:
 21 12    a.  The severity of the violations, which includes the
 21 13 following:
 21 14    (1)  The amount of wages that are determined to be
 21 15 underpaid pursuant to this chapter.
 21 16    (2)  The activity or conduct complained of that violates
 21 17 the requirements of this chapter and was not merely a
 21 18 technical, nonsubstantive error.  Examples of a technical
 21 19 error include but are not limited to a mathematical error,
 21 20 bookkeeping error, transposition of numbers, or computer or
 21 21 programming error.
 21 22    b.  The nature and duration of the present violation and
 21 23 the prior history of the contractor or subcontractor related
 21 24 to this history.  The prior history considered shall not
 21 25 exceed seven years before the date of the notice of violation.
 21 26    c.  Whether the contractor or subcontractor filed certified
 21 27 payroll records with the public body in charge of the public
 21 28 improvement; whether the contractor or subcontractor has kept
 21 29 payroll records and accurate records for three years; and
 21 30 whether the contractor or subcontractor produced certified
 21 31 payroll records in accordance with section 91F.9.
 21 32    d.  Whether the contractor or subcontractor has violated
 21 33 any other provision of this chapter.
 21 34    5.  The notices of the first, second, and subsequent
 21 35 violations shall be sent by restricted certified mail,
 22  1 addressed to the last known address of the contractor or
 22  2 subcontractor involved.  The notices shall contain a reference
 22  3 to the specific provisions of this chapter alleged to have
 22  4 been violated, identify the particular public improvement
 22  5 involved, identify the conduct complained of, and identify
 22  6 whether the notice is a first, second, or subsequent notice,
 22  7 and include a contractor's or subcontractor's statement of
 22  8 liabilities.
 22  9    Sec. 13.  NEW SECTION.  91F.12  VIOLATIONS == REMEDIES.
 22 10    1.  If the commissioner determines that a public body has
 22 11 divided a public improvement into more than one contract for
 22 12 the purpose of avoiding compliance with this chapter, the
 22 13 commissioner shall issue an order compelling compliance.  In
 22 14 making a determination whether a public body has divided a
 22 15 public improvement into more than one contract for the purpose
 22 16 of avoiding compliance with this chapter, the commissioner
 22 17 shall consider all of the following:
 22 18    a.  The physical separation of the public improvement
 22 19 structures.
 22 20    b.  The timing of the work on the public improvement phases
 22 21 or structures.
 22 22    c.  The continuity of public improvement contractors and
 22 23 subcontractors working on public improvement parts or phases.
 22 24    d.  The manner in which the public body and the contractor
 22 25 and subcontractors administer and implement work on the public
 22 26 improvement.
 22 27    2.  A worker employed by the contractor or subcontractor
 22 28 who is paid less than the specified prevailing wage rate under
 22 29 this chapter shall have a private right of action for the
 22 30 difference between the amount so paid and the specified
 22 31 prevailing wage rate, together with costs and reasonable
 22 32 attorney fees as shall be allowed by the court.
 22 33    3.  The contractor or subcontractor shall additionally be
 22 34 liable to the department for fifty percent of the
 22 35 underpayments and shall be additionally liable to the worker
 23  1 for punitive damages in an amount equal to five percent of the
 23  2 liability to the division for underpayments for each month
 23  3 following the date of payment during which underpayments
 23  4 remain unpaid, together with costs and reasonable attorney
 23  5 fees as shall be allowed by the court.
 23  6    4.  If a second or subsequent action to recover
 23  7 underpayments is brought against a contractor or subcontractor
 23  8 within a three=year period and the contractor or subcontractor
 23  9 is found liable for underpayments to a worker, the contractor
 23 10 or subcontractor shall be liable to the division for
 23 11 seventy=five percent of the underpayments payable as a result
 23 12 of the second or subsequent action, additionally liable for
 23 13 ten percent of the amount of the liability to the division for
 23 14 underpayments for each month following the date of payment
 23 15 during which the underpayments remain unpaid, and liable for
 23 16 triple the difference between the amount so paid to the worker
 23 17 and the specified prevailing wage rate required, together with
 23 18 costs and reasonable attorney fees as shall be allowed by the
 23 19 court.  The three=year period begins to run from the date the
 23 20 contractor or subcontractor is determined liable for the first
 23 21 violation.
 23 22    5.  The commissioner and any interested party shall also
 23 23 have a right of action on behalf of a worker who has a right
 23 24 of action under this chapter.  An action brought to recover
 23 25 the same shall be deemed to be a suit for wages, and all
 23 26 judgments entered in the action shall have the same force and
 23 27 effect as other judgments for wages.  At the request of a
 23 28 worker employed by a contractor or subcontractor who is paid
 23 29 less than the prevailing wage rate required by this chapter,
 23 30 the commissioner may take an assignment of the wage claim in
 23 31 trust for the assigning worker and may bring any legal action
 23 32 necessary to collect the claim, and the contractor or
 23 33 subcontractor shall be required to pay the expenses of the
 23 34 division incurred in collecting the claim.
 23 35    6.  In circumstances where a worker may not be available to
 24  1 receive a payment or judgment, the payment due the worker
 24  2 shall revert to the division after one year elapses from the
 24  3 time payment was attempted to be made or judgment was
 24  4 rendered.
 24  5    7.  a.  It is a violation of this chapter for a contractor
 24  6 or subcontractor to do any of the following:
 24  7    (1)  To request or demand, either before or after the
 24  8 worker is engaged, that a worker pay back, return, donate,
 24  9 contribute, or give any part or all of the worker's wages,
 24 10 salary, or thing of value, to any person, upon the statement,
 24 11 representation, or understanding that failure to comply with
 24 12 the request or demand will prevent the worker from procuring
 24 13 or retaining employment.
 24 14    (2)  To directly or indirectly pay, request, or authorize
 24 15 any other person to violate this chapter.
 24 16    b.  This subsection does not apply to an agent or
 24 17 representative of a duly constituted labor organization acting
 24 18 in the collection of dues or assessments of the organization.
 24 19    8.  In addition to other penalties provided under this
 24 20 chapter, whoever induces a worker working on a public
 24 21 improvement subject to this chapter to give up or forego any
 24 22 part of the prevailing wage rates to which the worker is
 24 23 entitled under this chapter by threat not to employ or by
 24 24 threat of dismissal from employment is guilty of a serious
 24 25 misdemeanor.  An agreement between the worker and the
 24 26 contractor or subcontractor to work for less than the
 24 27 specified prevailing wage rate shall not be a defense to
 24 28 criminal prosecution.
 24 29    9.  a.  A contract shall not be awarded to a contractor or
 24 30 subcontractor who, on two separate occasions within a
 24 31 three=year period, has been determined to have violated this
 24 32 chapter, or to any firm, corporation, partnership, or
 24 33 association in which the contractor or subcontractor has any
 24 34 interest until five years have elapsed from the date on which
 24 35 a final determination is rendered finding the contractor or
 25  1 subcontractor in violation of this chapter.
 25  2    b.  For the purposes of this subsection, "any interest"
 25  3 means an interest in the entity bidding or performing work on
 25  4 the public improvement, whether as an owner, partner, officer,
 25  5 manager, employee, agent, consultant, or representative.  "Any
 25  6 interest" includes but is not limited to all instances where
 25  7 the barred contractor or subcontractor receives payments,
 25  8 whether cash or any other form of compensation, from any
 25  9 entity bidding or performing work on the public improvement,
 25 10 or enters into a contract with the entity bidding or
 25 11 performing work on the public improvement for services
 25 12 performed or to be performed under contract that have been or
 25 13 will be assigned or sublet, or for vehicles, tools, equipment,
 25 14 or supplies that have been or will be sold, rented, or leased
 25 15 during the period from the initiation of the barring
 25 16 proceedings until the end of the term of the barring period.
 25 17 "Any interest" does not include shares held in a publicly
 25 18 traded corporation if the shares were not received as
 25 19 compensation after the barring of an entity bidding or
 25 20 performing work on a public improvement.
 25 21    10.  If the division determines that a contractor or
 25 22 subcontractor has violated this chapter on two separate
 25 23 occasions within a three=year period, the division shall list
 25 24 on the department of workforce development's internet website
 25 25 and keep on record the name of the contractor or subcontractor
 25 26 and give notice by restricted certified mail of the list to
 25 27 any public body requesting the list.
 25 28    11.  Upon a determination that a contractor or
 25 29 subcontractor has violated this chapter on two separate
 25 30 occasions within a three=year period, the division shall
 25 31 notify the violating contractor or subcontractor by restricted
 25 32 certified mail.  The contractor or subcontractor has ten
 25 33 working days to request of the division a hearing before an
 25 34 administrative law judge on the alleged violation.  Failure to
 25 35 respond within ten working days shall result in automatic and
 26  1 immediate barring of the violator from work and placement and
 26  2 publication of the violator's name on the department of
 26  3 workforce development's internet website.  If the contractor
 26  4 or subcontractor requests a hearing within ten working days by
 26  5 restricted certified mail, the department of inspections and
 26  6 appeals shall set a hearing before an administrative law judge
 26  7 on the alleged violation.  The hearing shall take place no
 26  8 later than forty=five calendar days after the receipt by the
 26  9 division of the request for a hearing.  An action by an
 26 10 administrative law judge constitutes final agency action and
 26 11 is subject to judicial review under section 17A.19.
 26 12    12.  The attorney general shall prosecute the cases
 26 13 identified in this section upon complaint by the commissioner
 26 14 or by any interested person.  In any proceeding brought
 26 15 pursuant to this section, the commissioner shall be
 26 16 represented by the attorney general.
 26 17    13.  This section does not give reason or provide cause for
 26 18 an injunction to halt or delay any public improvement.
 26 19    Sec. 14.  NEW SECTION.  91F.13  APPRENTICES.
 26 20    This chapter shall not prevent the employment of
 26 21 apprentices upon public improvements.  However, an apprentice
 26 22 employed on a public improvement must be registered with the
 26 23 United States department of labor's bureau of apprenticeship
 26 24 and training under an apprenticeship program registered with
 26 25 that bureau, paid the proper wages specified in the standards
 26 26 of apprenticeship, and engaged only in the trade to which the
 26 27 apprentice is registered.  If the apprentice is employed on a
 26 28 public improvement in a trade to which the apprentice is not
 26 29 registered with the United States department of labor's bureau
 26 30 of apprenticeship and training, the apprentice shall be
 26 31 treated as any other worker under this chapter.
 26 32    Sec. 15.  NEW SECTION.  91F.14  PUBLICLY OWNED HORIZONTAL
 26 33 TRANSPORTATION INFRASTRUCTURE EXCEPTION.
 26 34    1.  Notwithstanding other provisions of this chapter,
 26 35 except for the threshold criteria of section 91F.3, subsection
 27  1 11, paragraph "c", federal Davis=Bacon Act prevailing wage
 27  2 rates and procedures, as defined in 29 C.F.R. pts. 1, 3, and
 27  3 5, and administered by the public body, shall apply to public
 27  4 improvements that are publicly owned horizontal transportation
 27  5 infrastructure, which includes but is not limited to roads and
 27  6 streets as defined in section 306.3.
 27  7    2.  This section applies only to public improvements that
 27  8 are publicly owned horizontal transportation infrastructure
 27  9 let for bid on or after July 1, 2009.
 27 10    Sec. 16.  IMPLEMENTATION OF ACT.  Section 25B.2, subsection
 27 11 3, shall not apply to this Act.
 27 12    Sec. 17.  EFFECTIVE AND APPLICABILITY DATES.
 27 13    1.  Except as provided in subsection 2, this Act takes
 27 14 effect July 1, 2009, and applies only to public improvements
 27 15 let for bid on or after that date.
 27 16    2.  This Act takes effect July 1, 2010, for public
 27 17 improvements in state=managed parks and state=managed
 27 18 destination parks.
 27 19                           EXPLANATION
 27 20    This bill requires a contractor to pay workers the same
 27 21 hourly wage plus fringe benefits for certain public
 27 22 improvements as the contractor would pay workers for a private
 27 23 construction or improvement project.  The bill allows the
 27 24 per=hour wage rate to be based on what is normally paid in the
 27 25 area by contractors for similar projects, and to be adjusted
 27 26 on a yearly basis by the department of workforce development.
 27 27 The bill includes specific criteria, such as cost of the
 27 28 public improvement and the population of the city or county,
 27 29 for the project to qualify for the prevailing wage rate.
 27 30    The wage rates that the workers must be paid shall also
 27 31 include benefits such as medical care, life insurance,
 27 32 overtime pay, and vacation and holiday pay.  The bill applies
 27 33 to any public improvement that receives money from a public
 27 34 body and includes most types of public improvements from
 27 35 construction to road maintenance to painting to hauling.
 28  1    The labor commissioner determines the wage rates for
 28  2 specific geographical areas and for specific crafts,
 28  3 classifications, and types of workers.  This information must
 28  4 be posted on the department of workforce development's
 28  5 internet website.  In determining what the wage rate for a
 28  6 worker is, the commissioner may consult collective bargaining
 28  7 agreements, wage rate determinations for federal projects in
 28  8 the same area, and other information the department may
 28  9 receive from contractors who participate in an apprenticeship
 28 10 program approved by the federal bureau of apprenticeship and
 28 11 training.
 28 12    Any person affected by the wage rates has 15 days after the
 28 13 department of workforce development has posted the wage rates
 28 14 on its website to object in writing, stating the specific
 28 15 reason for the objection, to the labor commissioner.  The
 28 16 commissioner must reconsider the determination being objected
 28 17 to, and either affirm or modify it within 15 days of receiving
 28 18 the objection.
 28 19    If the commissioner declines to modify the determination,
 28 20 with 10 days, the person affected may submit an objection in
 28 21 writing to the division, stating the specific reasons for the
 28 22 objection.  A hearing must be set by the department of
 28 23 inspections and appeals before an administrative law judge
 28 24 within 45 days after the objection is filed.  The person who
 28 25 filed the objection must show the administrative law judge
 28 26 that the wage rate was somehow made in error.  The division is
 28 27 required to show how it determined the wage rate.  The
 28 28 administrative law judge must make a decision about the wage
 28 29 rate within 30 days and it is considered a final
 28 30 determination.
 28 31    The bill requires that contractors and subcontractors not
 28 32 pay the workers less than the established wage rate but does
 28 33 not prohibit them from paying the workers more than the wage
 28 34 rate.  The wage rate must be paid without any deductions for
 28 35 food, sleeping quarters, use of tools, or safety equipment.
 29  1    The bill also requires the public body to monitor the
 29  2 contractors and subcontractors to ensure that the wage rate is
 29  3 paid.  A call for bids must state that the wage rate must be
 29  4 included in the bids for the public improvement.  All bids
 29  5 shall list the specific wage rates for each craft,
 29  6 classification, and type of worker needed for the public
 29  7 improvement.  All contractors and subcontractors are required
 29  8 to sign a contract that states they will pay workers the wage
 29  9 rate determined by the division.  If the contractors and
 29 10 subcontractors are found to not be paying the wage rate, the
 29 11 contract states that the contractor's or subcontractor's right
 29 12 to work on the public improvement and get paid for work
 29 13 already done may be terminated.
 29 14    Before the contractor or subcontractor receives the final
 29 15 payment for the public improvement, the public body overseeing
 29 16 the public improvement must certify the bills include proper
 29 17 amounts due the workers, and the contractor or subcontractor
 29 18 must swear under oath that the records are accurate.
 29 19    The bill does not apply to public improvement projects
 29 20 funded by the federal government.  However, unless a federal
 29 21 provision applies, if a public improvement project is financed
 29 22 by both a state public body and the federal government, then
 29 23 the higher of the applicable wage rates shall be paid to the
 29 24 workers.
 29 25    The bill also requires that contractors and subcontractors
 29 26 keep detailed records for at least three years about the
 29 27 workers, the rates paid, and the hours worked for each public
 29 28 improvement.  The records are public records and must be
 29 29 available for inspection.  However, workers' personal
 29 30 information is not available to the public for inspection.
 29 31 During the public improvement, a contractor or subcontractor
 29 32 must present a certified weekly payroll to demonstrate that
 29 33 the correct and full wage rate is being paid to workers.  The
 29 34 contractors and subcontractors must all make workers available
 29 35 on=site to officials for interviews so that the records'
 30  1 accuracy can be checked.  Contractors and subcontractors must
 30  2 also post the wage rates for each craft, classification, and
 30  3 type of worker in a public place where workers can see the
 30  4 posting or at the place where they receive their wages.
 30  5    The commissioner is given specific powers for
 30  6 investigation, enforcement, and penalization.  The
 30  7 commissioner may sue to prevent a contractor or subcontractor
 30  8 from being awarded a contract for a public improvement when
 30  9 the wage rate requirements have not been met.  The
 30 10 commissioner is given the power to withhold payments if a
 30 11 contractor or subcontractor does not produce records upon
 30 12 request and to pay the workers directly if the contractor or
 30 13 subcontractor continues to refuse to provide records.
 30 14    After receiving a complaint, the commissioner shall
 30 15 investigate whether there has been a violation.  If the
 30 16 commissioner determines there has been a violation, the
 30 17 contractor or subcontractor must be given notice of that
 30 18 violation.  The notice is a formal written statement from the
 30 19 department of workforce development that states the specific
 30 20 violation and the amount of money due as a penalty.
 30 21    If a public body has divided up a public improvement to
 30 22 avoid having to pay the wage rate, the commissioner shall
 30 23 order compliance.  A worker who is paid less than the wage
 30 24 rate set by this law can sue for the difference in payment and
 30 25 collect the difference along with costs and attorney fees in
 30 26 court.
 30 27    The contractor or subcontractor shall also have to pay the
 30 28 department of workforce development 50 percent of the
 30 29 underpayment and is liable to the worker for punitive damages
 30 30 of up to five percent of the underpayments for each month the
 30 31 underpayment remains unpaid plus costs and attorney fees.
 30 32    If a second or subsequent action for underpaying a worker
 30 33 is brought against a contractor or subcontractor within a
 30 34 three=year period and the contractor or subcontractor is
 30 35 liable, the contractor or subcontractor shall pay the
 31  1 department of workforce development 75 percent of the
 31  2 underpayment, pay the department 10 percent of the penalty for
 31  3 underpayments for each month following it that the
 31  4 underpayment remains unpaid, and is liable for triple the
 31  5 difference between the amount paid to the worker and the
 31  6 amount due under the wage rate set by the department plus
 31  7 costs and attorney fees.
 31  8    The commissioner or any interested party has a right of
 31  9 action on behalf of any individual who has a right of action
 31 10 under the bill.  The commissioner may file a lawsuit in trust
 31 11 for a worker who assigns the claim and then bring legal action
 31 12 to collect the claim.  The contractor shall be required to pay
 31 13 the expenses for collection of the claim.
 31 14    A person may not ask, demand, receive, donate, give, or
 31 15 agree to give back any part of a worker's wages or thing of
 31 16 value to any person who asserts that failing to do so will
 31 17 prevent the worker from keeping or getting work.  However,
 31 18 this provision does not apply to authorized labor organization
 31 19 representatives.
 31 20    In addition to other penalties under this law, anyone who
 31 21 attempts to get a worker to give up any part of compensation
 31 22 on a public improvement by threat not to hire or by threat of
 31 23 firing is guilty of a serious misdemeanor.  Any agreement to
 31 24 work for less than the determined wage rate is not a defense
 31 25 to criminal prosecution.
 31 26    If a contractor or subcontractor has violated this law
 31 27 twice within a three=year period, the contractor or
 31 28 subcontractor or any company or group associated with the
 31 29 contractor or subcontractor shall not be given any public
 31 30 improvement work for five years.  The department of workforce
 31 31 development shall keep a list on its website of contractors
 31 32 and subcontractors who have violated this law twice within a
 31 33 three=year period and notify public bodies by restricted
 31 34 certified mail.
 31 35    A contractor or subcontractor who has been notified of the
 32  1 second violation has 10 days to request a hearing before an
 32  2 administrative law judge.  If no hearing is requested, the
 32  3 contractor is barred from receiving public improvement work
 32  4 and its name and information is posted on the department's
 32  5 website.  A hearing must be held within 45 days of the
 32  6 request.
 32  7    Apprentices employed on a public improvement project must
 32  8 be registered with the federal apprenticeship and training
 32  9 program.  Apprentices must receive the wages set out in the
 32 10 standards of apprenticeship and do only the work specified in
 32 11 the trade to which they are apprenticed.  An apprentice not
 32 12 registered with the federal program shall be paid the wage
 32 13 rate the same as any other worker.
 32 14    The bill makes an exception from the prevailing wage rates
 32 15 set out in the bill, except for the threshold requirements in
 32 16 Code section 91F.3, subsection 11, paragraph "c", for publicly
 32 17 owned horizontal transportation infrastructure projects.  The
 32 18 federal Davis=Bacon Act prevailing wage rates and procedures
 32 19 shall apply.
 32 20    The bill may include a state mandate as defined in Code
 32 21 section 25B.3.  The bill makes inapplicable Code section
 32 22 25B.2, subsection 3, which would relieve a political
 32 23 subdivision from complying with a state mandate if funding for
 32 24 the cost of the state mandate is not provided or specified.
 32 25 Therefore, political subdivisions are required to comply with
 32 26 any state mandate included in the bill.
 32 27    The bill takes effect January 1, 2009.
 32 28 LSB 1573YC 83
 32 29 ak/nh/24